This is NOT an opinion piece for or against the legalization of marijuana. This article IS designed to get you to:
Think about the many legal issues that arose when states legalized the medical and recreational use of marijuana. And how these changes have impacted gun possession and concealed carry laws.
Gun Law Enforcement and the ATF:
The United States Department of Justice Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), is the federal law enforcement agency that oversees nearly all things firearms-related. One responsibility is the licensing and overseeing of Federal Firearms Dealers (FFLs’).
Every gun store from the big or small must be licensed and regulated by the ATF.
How does the ATF regulate Gun purchases?
The general public is confused as to the process of legally purchasing a gun. Consequently, a lot of myths have taken the place of fact. Currently, there is no federal law requiring universal background checks for all firearm purchases. However, federal law requires that all FFL's conduct background checks on any gun sale.
With some provisions, some states allow private party gun sales to take place without a background check. Currently, 14 states do not allow private party gun sales for any guns. Two states allow for private party sales of long guns, but not handguns.
When you buy a gun through an FFL, you must fill out ATF Form 4473. Additionally, you have to pass a National Instant Criminal Background Check System (NICS) background check. The process checks to see if you are legally prohibited from possessing a firearm.
There are a series of questions you must answer on ATF Form 4473. Pay particular attention to question 11.e:
11 e. Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance? Warning: The use or possession of marijuana remains unlawful under Federal law regardless of whether it has been legalized or decriminalized for medicinal or recreational purposes in the state where you reside
Am I an unlawful user of marijuana, if my state has legalized it?
Many states have legalized marijuana for medicinal and recreational use. However, the Drug Enforcement Agency (DEA) still classifies marijuana as a Schedule I drug. Schedule I drugs are defined as having no medicinal benefit. You may have already have picked up on the big problem here. According to state law, you may be legally allowed to use marijuana, while federally, there is no such thing as legal marijuana use.
In fact, in September of 2011, the ATF sent letters to FFL’s stating that knowingly selling a firearm to someone who is a marijuana user, even if s/he is legally able to possess marijuana in the state, would be a violation of federal law. Most FFL’s will not risk losing their license and sell to known marijuana users.
So the question arises:
Couldn't I simply answer “no” to question 11.e and be done with it?
Sure, if perjury is your thing. See, intentionally providing false information on a federal form like the 4473, would be considered perjury. Okay, but how would the federal government or an FFL know that I have a medical marijuana card or use it recreationally?
A casual marijuana user would probably not pop up on an FFL’s radar. However, FFL’s are usually very leery about selling guns to individuals who they think may be conducting an illegal “straw purchase” (buying a gun for someone else who can't pass a background check). And they are vigilant to identify someone or who seems like they intend to use the gun with bad intentions. Many would gladly pass up a sale if their gut is telling them something doesn't seem right with the buyer.
If you walk in smelling like weed, that's probably enough to make the FFL second guess selling you that firearm.
What about state-issued medical marijuana cards?
Some states issue medical marijuana licenses to their residents. At the time of this article, I am not aware of any state where the list of medical marijuana cardholder names is being provided to FFL’s. Nor have these lists been merged into the background check database. However, with the intense desire to further restrict gun ownership rights, it is not a stretch to think it could happen in the future.
Case rulings about marijuana and gun possession?
In August of 2016, the 9th U.S. Circuit Court of Appeals ruled that simply having a medical marijuana card, is enough to suspend that person's 2nd amendment right to purchase a firearm. The case began in 2011 when a gun store denied the sale of a firearm to a woman. The reason was that she had a state-issued medical marijuana license. The woman filed a lawsuit, and the case made its way all the way to the federal level and was ruled on by the 9th Circuit Court of Appeals.
It is not only important to know the ultimate decision of the appeal but to understand the way the court interpreted the law in this case. First, the court
- ruled unanimously 3-0 against the plaintiff
The Court ruled that it was
- reasonable for federal regulators to assume a medical marijuana license holder is more likely to use marijuana
The Senior District Judge went on to say:
In addition, a ban on the sale of guns to marijuana and other drug users is reasonable because the use of such drugs “raises the risk of irrational or unpredictable behavior with which gun use should not be associated,”
Concealed Carry Licenses Are Managed and Issued By States, Not the ATF.
What about concealed carry licenses and marijuana use?
This is another massive issue where state and federal law collide. Several state-level cases have resulted in various outcomes. There are Sheriffs of some states that delay or prohibit known marijuana users from obtaining a concealed carry license.
While other states have decided to allow marijuana users to get a concealed carry permit. However, even with these rulings, marijuana users still sometimes receive pushback from the issuing authorities.
In 2014, Colorado legislators proposed a law that would stop Sheriffs from prohibiting known marijuana users from obtaining concealed carry permits. The outcome…it didn’t gain enough support to be voted upon.
Let us look at the state of Missouri for an example.
Article XIV of the Missouri Constitution, which authorizes the medical use of marijuana in Missouri, does not reference or prohibit the possession or purchase of firearms.
The Department of Health and Senior Services (DHSS), which oversees the medical marijuana program, will not ask you if you own a firearm when applying. Nor will they distribute the database of patients who have a medical marijuana card, citing that it violates privacy.
State concealed carry license reciprocity issues:
When one state says it will honor a concealed carry license from another, it enters into a reciprocity agreement. If one state allows concealed handgun licenses to medical marijuana users, and another state doesn't, this could result in a rescinding of that reciprocity agreement.
Additionally, consider a situation where you take your handgun into a state that honors your concealed carry license. You also possess marijuana for medical or recreational purposes and are allowed to in your home state. You are still required to follow the gun laws of the state you are visiting. What if that state prohibits marijuana use and gun possession? You could end with serious legal issues.
What is a gun owner supposed to do?
It is evident that there is a huge disconnect between state and federal law. There is also a battle between the rights of the states and the power of the federal government. You can also read more about this topic in the post titled A Fresh Look at Marijuana and Gun Ownership.
We highly recommend understanding state gun law and the gun laws of any state you travel to. We put together the most comprehensive resource book covering all the state gun laws called Legal Boundaries by State. It comes in not only a hard copy but a digital format as well. The digital copy is updated regularly whenever gun law changes, and your version will always reflect the most up-to-date gun laws.
Regardless of your opinion on the medicinal or recreational use of marijuana, there is a real issue that needs to be addressed and clarified. People may unknowingly be sacrificing their constitutional rights in order to get high or use medical marijuana.
Undoubtedly some people may be chronically and potentially benefit from medically prescribed marijuana.
We suggest you weigh the options consider the unintended consequences of getting a medical marijuana license. Additionally, make sure you understand what your State Attorney Generals' opinion is on marijuana and gun possession. They may have a laze-fair approach or enforce it by the letter of the law. We are not attorneys. Therefore we suggest you speak with an attorney who is well versed in your specific state's gun and marijuana laws.